Pot shop interests sue San Diego County over ban on new operators

A group of property owners and marijuana-business operators filed suit against San Diego County on Friday, alleging that a March vote to prohibit new pot operations and phase out existing ones is unconstitutional.

Passed in March on a 3-2 vote of the Board of Supervisors, the prohibition amounts to an illegal taking of property — millions of dollars they spent prior to the ban to secure permits for their businesses, the lawsuit contends.

The plaintiffs are a group of nonprofit collectives and limited liability companies seeking to grow and distribute marijuana for medical purposes. The drug was also approved for recreational use by California voters last November.

The lawsuit accuses county officials of wrongly intervening in their approval processes, which included following advice and directions of the San Diego Sheriff’s Department.

“Unless petitioners are permitted to develop their properties pursuant to the original plans they submitted to the county and which were approved by the county’s Planning Development and Services (PDS), petitioners will lose thousands of dollars in investment and San Diego County will be denied access to lawful medical marijuana facilities,” the complaint states.

County spokesman Michael Workman said he could not comment on pending litigation.

The ban was approved after a contentious Board of Supervisors hearing March 15.

Several of the plaintiffs testified at the March hearing that in addition to damaging their business interests the ban would harm patients who rely on marijuana as medication.

Nonetheless, a majority of board members supported the prohibition. Supervisors Dianne Jacob, Bill Horn and Kristin Gaspar also imposed a five-year sunset on existing collectives, meaning that previously approved dispensaries and pot companies would no longer be permitted by 2022.

The plaintiffs complained in the lawsuit that five years is not enough time to recoup their investments.

Supervisors Ron Roberts and Greg Cox opposed the ban, saying the county should bend to the will of the majority of voters who embraced legalized marijuana. In San Diego County, 57 percent of voters approved Proposition 64 on the November ballot.

The county marijuana ban only affects pot operations in the unincorporated sections of San Diego County, not those within incorporated cities. The complaint was filed by property owners and would-be growing operations in Ramona, Valley Center, Lakeside and outside El Cajon.

According to the suit, plaintiffs invested a combined $4 million-plus in property, permit fees and other costs in order to comply with the county policies on the books before the March ban.

County rules dictating where the businesses could operate pitted the prospective operators against each other in a race for approval, because only 147 sites were identified as permittable, the suit said.

“If a petitioner acquired a property and a rival acquired a nearby property, there would be a race to gain county approval first because whoever gained approval would exclude their competitor due to the county separation requirements,” the lawsuit states.

As a result, plaintiffs hurried to buy or lease available properties and comply with planning and sheriff’s department rules.

“Under the common law, if the county were granting petitioners their vested rights, then petitioners should be permitted to cultivate medical marijuana per the provisions in the original ordinance under which they filed their plans to the county,” the lawsuit said.

The lawsuit also accuses county officials of destroying records collected by senior staff, who prior to the ban were tracking applications as they wound through the approval process.

Planning officials “ordered county staff to destroy those records, delete all computer files, emails, reports and other records concerning the medical marijuana permit processing,” the lawsuit states. “The medical marijuana matters (or as staff referred to it ‘MeMa’ or ‘MMJ’) were all removed from the county website.”

The San Diego County Board of Supervisors has long opposed marijuana, both for medicinal and recreational use. The county sued to overturn state medical pot laws, but lost its arguments at every level of state and federal court. Supervisors voted to appeal each losing decision to a higher court, all the way up to the U.S. Supreme Court, which refused to take up the complaint in 2009.

The case was brought by San Diego attorney Maria Severson, who is seeking unspecified damages and a judge’s declaration that San Diego County violated the statutory, contractual and constitutional rights of her clients.

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